Police and Justice Bill - Standing Committee D

[Derek Conway in the Chair]

Police and Justice Bill

Clause 21 - Appointment of Chief Inspector

Nick Herbert: I beg to move amendment No. 144, in clause 21, page 22, line 15, at end insert—
‘(3)The Chief Inspector shall maintain complete independence from the Government and shall not be directed by Ministers except where specifically directed under the provisions of this Act.’.
I am glad that you survived the threat to life and limb suggested by the fire alert, Mr. Conway.
The amendment is designed to provoke debate on the important fact that the chief inspector of the new combined inspectorate should be constitutionally independent from the Government. There are reasons to worry about whether that will be the case. The inspectorates are nominally independent now. On the Home Office website, which I am always keen to quote, the introduction to the inspectorate of constabulary says that it is
“independent both of the Home Office and of the Police Service.”
Lord Chief Justice Woolf has observed, in relation to the prisons inspectorate, that
“a system without an independent element is not a system that accords with proper standards of justice.”
However, we know from what previous chief inspectors have said about the operation of their inspectorates and how they work with the Government that that independence is often sorely tested. Lord Ramsbotham, the former chief inspector of prisons, noted in his book “Prisongate” that during his time as chief inspector, he and the Prison Service were working to different agendas and that the permanent secretary in the Home Office did not
“like or understand our independence.”
He further describes the way in which the Government sought to interfere, sometimes with the content of his inspectorate reports. On one, he says:
“I would have liked to complete a further thematic review called ‘Inequalities’ to address my deep concern about how five separate minority groups were treated in prison,”
but the Minister
“suddenly announced that he did not want me to include race in the review”.
Lord Ramsbotham says that he tried to persuade the Minister to include a review, but was not successful.
Similarly, Chris Woodhead, the former chief inspector of schools, sets out in his book “Class War” the relationship that he had with the Government, which was not one of proper independence. He says:
“Never at any point in its history was HMI wholly or constitutionally independent of government”.
In fact, prior to the creation of the Office for Standards in Education, the inspectorate was a member of the permanent secretary’s senior management board, working with other civil servants to an agreed agenda. Then, the Department was able to determine
“what it said and did not say”.
In 1992 Parliament made Ofsted constitutionally independent, but Mr. Woodhead says that in practice
“the Department continues to hold the purse strings. Officials and politicians alike seek to exert influence over the supposedly independent inspectorate in a variety of ways.”
He concludes:
“An independent inspectorate: In theory, it is fine. In practice, of course, people do not like it.”
As to the part that will be played by the existing inspectorate of constabulary in the combined inspectorate, we had a debate at the beginning of our consideration of this Bill about how the national policing improvement agency would sit alongside the Government’s Police Standards Unit and the independent inspectorate. As there is already a national policing improvement agency giving advice to police forces and the Government, and a Police Standards Unit operating in the Home Office that gives advice to Ministers, it is vital that the inspectorate sits properly outside the Home Office and is not interfered with in any way by Ministers. At the very least, that would avoid overlap, but it would also mean that the inspectorate could do its constitutional duty.
My concern about the matter was reinforced on a closer reading of the Bill. It transpires that subsection (3) of clause 25, which we will come to later, states:
“In exercising any of his functions the Chief Inspector shall have regard to such aspects of government policy as the responsible ministers may direct.”
That is a very wide phrase indeed; it appears to give Ministers power to direct the chief inspector in any way that they want. Furthermore, in clause 24 there is yet another order-making power. It says that the Government may
“by order confer on the Chief Inspector additional functions in relation to anything that is, or is an aspect of, a matter in respect of which he has a duty under this Part to carry out inspections.”
So the provisions contain sweeping powers under which the inspectorate could be directed in ways that it is difficult for us to foresee.
The purpose of my amendment is to enshrine a principle that I am sure the Government will accept as right—namely that the inspectorate should be properly independent from the Government. The amendment states that the inspectorate will
“not be directed by Ministers except where specifically directed under the provisions of this Act.”
I must say that in many respects the amendment is not adequate to protect the independence of the combined new inspectorate because of clause 25(3), to which I referred, under which the Government can effectively give the inspectorate new functions and therefore direct it to carry out those new functions as they see fit. However, even if the amendment is imperfect, the  principle that the inspectorate should stand apart from Ministers should somewhere be written into the legislation.
It is extremely important that the public can have confidence in an independent body that assesses whether certain standards have been met. That applies to our public services across the board, but as we discussed in the last sitting, it must apply particularly to the prisons inspectorate, the police and the other safety services caught under the new inspectorate. If not, the constant temptation for any Government, not just this one, will be to seek to influence the work of the inspectorate. That will result in confusion about the role of inspectors in some areas, which is to act as advisers to Ministers; that is certainly the case for the inspectorate of constabulary. That role may be proper, although I question whether it is necessary given the plethora of bodies established under the new arrangements with the national policing improvement agency. Nevertheless, that advice cannot be a two-way street; it cannot result in the inspectorate being directed or influenced by the Government. There is concern that that will be the case.
In our debate on the previous amendment, I mentioned the importance of ensuring that the inspector of prisons is someone of independent standing who brings a fresh eye to the inspection regime and commands public confidence in his or her pronouncements. That has too often not been the case for other aspects of the inspectorates. For instance, in relation to the police, the senior inspectors of constabulary are drawn from the ranks of serving chief constables. There is a very close relationship between them and other chief constables. They are not allowed to inspect their own forces, but nevertheless the networks are very strong. I question whether that is the right arrangement for an independent inspectorate, or whether we need people from outside the police service who have some expertise, but more importantly, have an independence that enables them to enter and assess properly whether forces are performing up to scratch. Perhaps setting up a combined independent inspectorate provides the opportunity—I see that the Minister is shaking her head—to entrench that independence. I accept that that may be an argument for the combined inspectorate, although my concerns stand about the prisons aspect. However, that constitutional independence should be enshrined in the Bill.

Fiona Mactaggart: It might be helpful if we start with the definition of inspection that the Government set out in their policy on the inspection of public services, because that includes an important commitment. As a first rule, it defines inspection as an external review that should be independent of the service providers. Inspectorates should also provide assurance to Ministers and the public about the safe and proper delivery of the services, contribute to their improvement, report in public and deliver value for money. It is right that that quick summary of the function starts with independence, which the hon. Gentleman emphasised.
The hon. Gentleman reflected on whether previous inspectors had experienced the kind of independence that rhetoric has always rightly praised in the House. An inspectorate that is a poodle to a service, or its creature, cannot inspect and provide the critique of performance quality of a public service for which we depend on it.
Lord Ramsbotham, who was previously the chief inspector of prisons, has rightly reminded us of moments of tension between him and the Home Office. Whatever statutory provision we establish will be there—and it is right that it should be. In a way, it is almost necessary that civil servants will keep trying to do things their way, because if there is never any tension between them and the inspectorate, one will wonder whether it is being sufficiently independent. On Second Reading, the Home Secretary said that
“the key point for me is the independence of the inspectorate, which must be spiky, particularly when considering the conditions of detention”.—[Official Report, 6 March 2006; Vol. 443, c. 617.]
Unless that relationship is spiky and has moments of difficulty, it will not be a reflection of the right independence of relationship.
Have we achieved that in the Bill? I am confident that the Bill already achieves the effect sought by the amendment. The complete independence of the chief inspector from the Government is guaranteed, in so far as it is possible to guarantee it by legislation, by virtue of the establishment of the office as a statutory post, as is the case with existing chief inspectors in the justice sector. Ministers will not have the power to direct the chief inspector, other than where a statute provides for it. The hon. Gentleman mentioned that clause 25(3) contains a requirement for the chief inspector to have regard to aspects of Government policy and asked whether that would infringe their independence. They will remain entitled, as is made clear in the provisions about reporting and so on, to challenge Government policy and procedure to bring about improvement, including where a bad policy is producing the wrong outcomes for service users.
The power to which the hon. Gentleman referred ensures that, if necessary, Ministers can guide the chief inspector in accordance with policy on the broad purposes of inspection, such as assurance, service improvement and obtaining value for money, and obtain his or her expert views on the outcomes achieved on policy objectives. For example, we have a policy objective to reduce reoffending. All parts of the criminal justice system ought to play a part in achieving that outcome. It is a matter not only of what happens to people in prison, but of what happens to people under supervision in the community, how the police deal with criminals and how the court and the Crown Prosecution Service function. All those parts of the system can have an impact on reducing reoffending. It would be quite proper for Ministers to ask the inspectorate to have regard to that Government policy when conducting an inspection, but they will not have the power to direct the chief inspector what to conclude or how to conduct the inspection. Absolute independence will remain.
The hon. Gentleman also referred to the possibility of conferring additional functions on the inspectorate by order. At present, we can confer additional functions on many of our criminal justice inspectorates by fiat. One of the reasons that we are seeking to pass the Bill is to obtain parliamentary scrutiny of the possibility of doing so by order. I share his feeling about some of our inspectorates that started within the service. They risk—let us not put it more strongly than that—becoming too cosy. In some ways, the tradition of involving them in senior appointments, training, staff development and so on is not fundamentally appropriate for inspectorates, which need a kind of spikiness and distance.
We have therefore taken the opportunity not to put that within the purview of the inspectorate, but there might be an occasion—perhaps that of appointments to some independent body—on which the view of the inspectorate would be appropriate. We do not want to rule out that possibility, but if it is done by order, we could discuss it in Parliament and it could be done properly.
The hon. Gentleman’s remarks have hit on the nub of the matter. The Bill is an opportunity to create an inspectorate that has a direct relationship with Ministers, direct accountability and the ability that our chief inspectors have, which he said the former chief inspector valued so much, to stand up and give it straight to the person responsible for service quality. We have maintained that relationship—the inspectorate will be an independent officer of the Crown—but by bringing the inspectors together, we have given ourselves the opportunity to infuse the inspectorate with the independent qualities that every parliamentarian I have heard speak about it values in the prisons inspectorate.
We recognise that the prisons inspectorate, because it performs human rights inspections, has some particular qualities. That is why we have created the special duty relating to prisons—so that it will not be subsumed in the general duties and so that that quality will be maintained.
I am confident that the amendment would not add anything to the chief inspector’s independence from the Government, which is already complete and equal to that of existing chief inspectors. Although chief inspectors of all kinds criticise the system for trying occasionally to infringe their independence, I have yet to meet an effective chief inspector who thinks that the system beat them and succeeded in infringing their independence. I therefore urge the hon. Gentleman to withdraw his amendment. It is not necessary, and we are all united on the issue.

Nick Herbert: I am grateful for the Minister’s response, because she recognised some of the concerns that have been expressed and shared some of the views that I set out about the need to maintain an independent inspectorate. Much of what she says is reassuring.
I have some continuing concerns, and some observations, however. First, I worry whether the provision in clause 25(3) that
“the Chief Inspector shall have regard to such aspects of government policy as the responsible ministers may direct”
may prevent the chief inspector from speaking out against and criticising Government policy. The Minister shakes her head. If my worry is incorrect, it would be helpful if she said so on the record, because it is important to send out the correct signal about the independence of inspectors and their ability at times to say things about the operation of policy that are difficult for Governments to accept. It is an important caveat.
Secondly, I accept what the Minister said about the possible need to confer additional functions on the chief inspector under clause 24. She said that they would be debated in Parliament, but I wonder whether they will be, because I suspect that they will be made under the negative resolution. There may not be any opportunity for debate about those additional functions, but that is just a minor, though familiar, point about the order-making powers.
My substantive point relates to whether it is a good idea to enshrine the independence of the inspectorate, and the chief inspector in particular, in the Bill. The Minister’s argument was not to criticise the idea that the inspector should be independent, but to say that the amendment is unnecessary and that its provisions are already guaranteed. If I heard correctly, the guarantee is offered simply by creating the statutory office of the inspector. I do not see why that in itself should guarantee the independence of the position. Many statutory offices are created by legislation, and it does not necessarily mean that they are independent.
Given that I am sure the Minister shares the desire to maintain and enshrine that independence, will she reflect on whether it would be a good idea to insert that independence in the Bill? It would not harm the operation of the inspectorate, but it would make it clear to the public and to the appointees themselves that they have an independent role and they are expected to fulfil it. I do not wish to press the amendment, but I should be grateful if the Minister reflected on that point and responded to my specific concern about whether the chief inspector might not be permitted to speak out in criticism of Government policy.

Fiona Mactaggart: May I remind the hon. Gentleman of the words that I used? Perhaps I spoke quickly, in which case he might not have been able to recall them. I said quite specifically that the chief inspector will remain entitled to challenge Government policy and procedure to bring about improvement. That will include situations in which a bad policy is producing wrong outcomes for service users. I hope that that gives him the assurance he seeks.

Nick Herbert: I am grateful, and I am sorry to have missed that reassurance when the Minister first provided it. It is helpful. On that basis, in the hope that she will reflect on whether a specific provision for  independence should be put in the Bill and on the basis that we can return to the issue at a later stage, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Derek Conway: With this it will be convenient to discuss the following: Clause stand part.
New clause 4—Establishment of joint secretariat and planning unit for criminal justice system inspectorates—
‘(1)There shall be a body to be known as the Joint Secretariat and Planning Unit for Criminal Justice System Inspectorates (in this Part to be known as “the Joint Secretariat”).
(2)The Joint Secretariat will co-ordinate—
(a)Her Majesty’s Inspectorate of Constabulary,
(b)Her Majesty’s Crown Prosecution Service Inspectorate,
(c)Her Majesty’s Inspectorate of Court Administration,
(d)Her Majesty’s Inspectorate of Prisons,
(e)Her Majesty’s Inspectorate of Probation, and
(f)The immigration enforcement system.’.
New clause 5—Appointment of chief executive—
‘The chief executive of the Joint Secretariat shall be appointed by a panel comprising the chief inspectors from: Her Majesty’s Inspectorate of Constabulary; Her Majesty’s Crown Prosecution Service Inspectorate; Her Majesty’s Inspectorate of Court Administration; Her Majesty’s Inspectorate of Prisons; Her Majesty’s Inspectorate of Probation (“the Criminal Justice Chief Inspectors”).’.
New clause 6—General duty of the secretariat and planning unit—
‘The Joint Secretariat shall work with the Criminal Justice Chief Inspectors to provide—
(a)the promotion and support for area inspections and joint thematic inspections,
(b)links to inspectorates of other services, such as Her Majesty’s Chief Inspector of Schools in England; the Adult Learning Inspectorate, the Commission for Healthcare Audit and Inspection, the Commission for Social Care Inspection and the Audit Commission,
(c)administrative support for the Criminal Justice Chief Inspectors, and
(d)capacity for joint planning of reports between the Criminal Justice Chief Inspectors.’.
New clause 7—Regulations for establishment of joint secretariat and planning unit—
‘(1)The Secretary of State may by regulation make provision for the establishment of the Joint Secretariat and in particular for—
(a)salaries,
(b)allowances,
(c)sums for the provision of pensions,
(d)staff, and
(e)general expenses.
(2)Regulations under this section shall not be made unless a draft of the regulation has been laid before, and approved by a resolution of, each House of Parliament.’.

Lynne Featherstone: Liberal Democrats have no objection in principle to the proposed merger of the inspectorates for police, Crown Prosecution Service, courts, prisons and probation service. However, we are concerned that in practice it will be counter-productive and decrease rather than increase the expertise in each inspectorate. There is widespread apprehension about the proposals, particularly in the police and prison sectors. As we heard in an earlier debate, the prisons  inspectorate is respected worldwide for the way in which it safeguards the interests of people who are confined by law away from public scrutiny in the closed and often isolated institution of prison. It is a closed system to which public and media access is minimal, so our duty to safeguard those who are vulnerable to abuse behind closed doors is paramount. We cannot abdicate that responsibility for the sake of convenience or of structural links that would in any way diminish that speciality.
To uphold the standard of work, the inspectorate has to be able to focus on the specific institutions, to set its own criteria rather than being under undue influence in terms of Government targets and—I am reassured by what the Minister said—to report publicly and directly to the Minister. As we have heard, the prisons inspectorate is special; it has specialist knowledge on how to detect abuses. We fear that merger will inevitably result in knowledge being lost and, as the hon. Member for Arundel and South Downs (Nick Herbert) said, the independence of the prisons inspectorate being compromised and the discovery of abuses diminished.
I want to consider more deeply the issue of independence. The Irish Commission for Justice and Peace, in examining the feasibility of the establishment of an inspectorate in Ireland, looked at the UK and around the world for best practice. It set out seven main requirements for independence, which seem pretty sound to me. They cover matters such as the need for the inspection be enshrined in legislation and to be appropriate to the prison system being inspected; for the inspectorate to enjoy a sufficient degree of independence to be proof against coercion, obstruction, intimidation or institutional bias; for resources to be adequate to ensure sufficient frequency and breadth of inspection; for personnel to be of the highest integrity and competence; for the inspectorate to be able to publish reports and findings quickly and without restraint and to secure their scrutiny by appropriate committees; for the inspectorate to be free to encourage public and media discussion of its reports; and for the inspectorate’s findings and recommendations to be able to secure an adequate response by Government and appropriate authorities. I would welcome the Minister telling us how much of that is included in the proposals.
For me, the most telling comments on what is about to happen are those of Anne Owers, the chief inspector of prisons. She calls the current climate an “uncertain and uncharted landscape” and, in the context of a growing prison population, she argues that the consistency and human rights focus offered by a specialist prisons inspectorate is all the more needed. However, she points out:
“at the same time, the inspectorate itself faces major structural change.”
That is the change that we are arguing against in our new clauses, which aim to protect the quality and independence of the prisons inspectorate.
Ms Owers is clearly worried and unconvinced by the Government’s arguments. She states in her annual report:
 “Ministers have said that they are committed to preserving the integrity of custodial inspection in its present form”,
but she clearly doubts their ability to do so under the new legislation. She continues:
“The question is whether that internationally recognised expertise can be ‘bottled’ and preserved within a much larger, differently focused, inspectorate. The Bill now before Parliament provides for a specific duty to inspect places of custody. That is welcome, and the legislative provisions will need to be carefully examined.”
She says that statute can guarantee only the outline, not the ethos, which the Minister mentioned, and the functioning of an organisation. The Government have said that they want the special focus of prisons inspection to “infuse” the new body, but Ms Owers points out that the other side of infusion is dilution. What has made the prisons inspectorate successful has been its specialised, human rights-based focus on a single phenomenon—the conditions and treatment of those detained by the state—and the fact that it acts under the sole authority of a chief inspector who is associated only with that issue and who speaks directly and with specialist knowledge to Ministers, Parliament, the public and the media.
The prison system will face huge changes and challenges in the next few years, and it is vital that it continues to be objectively and independently inspected robustly and in detail. Ministers say that that is what they want, but in the conclusion of her report, Ms Owers says:
“However, I remain concerned about whether it will be possible to legislate, and to create a structure, that ensures that this is what future Ministers will get.”
It is clear that she has doubts about whether the spikiness will be spiky enough on both sides to maintain that independent and tense relationship, and about whether the Government will have the spikes, rather than the prisons inspectorate. I think that that says it all. Ms Owers is highly respected and ultimately knowledgeable, and supports the view that we put forward.
I want to address one more aspect of what is effectively a merger. Work on mergers in private industry found that about 80 per cent. of mergers are either unsuccessful or find that their constituent parts are diminished; the cost is large; and there is an effectiveness lag, particularly during the reconstruction. The prisons inspectorate will go through uncertainty and change for about 18 months, during which time safeguards need to be in place.
I therefore hope that the Government will think long and hard about the prisons inspectorate and consider our proposed new clauses in a serious and constructive manner. We understand that they want to join up governance and that they seek improvement with the changes, but we are concerned that they might not get improvement. The model might allow for thematic studies and offer joined-up governance without so diluting—to use Ms Owers’ word—the  specialisms within each inspectorate. It might give the opportunity to best apply joined-up governance without that specialist loss.

Fiona Mactaggart: Let us review what the clause is trying to do. I will deal with the hon. Lady’s points. The clause establishes the position of a new chief inspector for justice, community safety and custody, who will take over from the existing justice system inspectorates—the inspectorates of: constabulary; the Crown Prosecution Service; court administration; prisons; and the national probation service for England and Wales. Our ambition is to create a chief inspector who will look at the whole system, have a direct relationship with Ministers, be appointed by the Queen, and give independent guidance and challenge to our services. That is why we want clause 21 to stand part of the Bill.
The hon. Lady seeks to substitute for the creation of a new chief inspector a joint secretariat and planning unit that would co-ordinate those five inspectorates. We considered such a model and consulted on it as part of our consultation on the reform of the inspectorate, but we rejected it because it would encounter the same limitations experienced by the existing inspectorates, which already have the use of a joint inspectorate for such purposes, albeit not on a statutory footing.
I am certain that such a model would suffer from a lack of strong, overriding leadership on inspection priorities, setting a strategic course on the balance between single agency and joint inspections, and the ability to commit resources accordingly. I think that nowadays everybody recognises that with modern inspection it is necessary to focus attention where it is most needed and have a relatively light touch when services are doing an excellent job to enable them to get on with it. Individually, inspectorates reflect that approach in their inspection programmes, but it is more difficult in a patchwork system in which there is merely co-ordination between existing inspectorates which focus on places and things, rather than issues.
The hon. Lady read out the inspection principles of a certain organisation—I did not hear which organisation—and those principles sounded very good. However, I would add one: the user, who in this case would be the defendant, victim or witness—the user of the services—should be a focus of the inspectorate. Generally, the kinds of qualities that she described are important to the inspectorate, which is one of the reasons why, for example, we have ensured that the inspectorate can set its own criteria. We have ensured also that expertise can be retained, which was one of her anxieties, and that is provided for in paragraph (5)(3) of schedule 8. That will ensure that the expertise that exists in all of the inspectorates—we have talked a lot about the expertise in the prisons inspectorate—can be retained.
The hon. Lady made the point, which was well-made, that her anxiety about the criminal justice inspectorate is not that it is in principle a bad idea, but that in practice there are risks. I admit that there are risks, but we have put a lot of energy into the design of the inspectorate in order to minimise those risks. The  inspectorate will have a special duty to inspect the human rights of people in custody. We recognise that a single criminal justice inspectorate might present risks: those in the end-to-end system have no customer engagement, whereas, for example, if a reporter from a local newspaper sees something going wrong in court, they can, in a sense, hold up their pen to it. They cannot act as a formal inspectorate, but they can engage public concern in a way that is not possible in prisons.
That is one of the reasons why, where custody is concerned, we need to be extremely careful to ensure that that quality of focus is retained, which is why the inspectorate will be structured as set out in the Bill. The model that the hon. Lady offers—I understand why she has done so—is a weaker one, and does not provide the opportunities to look at the spaces in between systems, the places through which people fall, and the end-to-end experiences.
We found that the inefficiencies, for example, in bringing offenders to justice, often happened in between different parts of the system. The police would say, “Oh, we arrest them fast”, but then there would be a block in the magistrates court because of the way in which the police perform their functions. If we aligned those services more intelligently, and got them to understand where the barriers were in the next service, we could improve the quality of the whole service.
At the moment, we do not have an inspection regime that can automatically focus on that. Of course, we have joint inspections, which are conducted in the way that clause 21 allows for—a kind of negotiated deal in between individual inspectorate’s fiefdoms. That has produced some excellent inspections such as one on the transport of people between courts and prisons. That good inspection highlighted a number of things that had been ignored. Often, however, those inspections do not produce good results because it is not necessarily anyone’s priority, and it is agreed between silo inspectors. They do not work well automatically or have a drive to get through it.
We believe that we need to try to ensure that inspection remains relevant to service users and providers. The reforms of policing, prosecution, court administration and the management of court offenders that have we have already conducted have been fundamental and wide-ranging. They have been supported by better joined-up strategies led by the National Criminal Justice Board, and at local level by the development of joint working arrangements with local criminal justice boards.
We do not have an independent inspection regime to match those reforms, and to match the achievements that service providers are seeking to develop to provide a unified public response to crime and disorder. A statutory joint secretariat could help with such objectives, and that is why we had the non-statutory one to which I referred. There has been some good progress with joint inspection works, but we want something more ambitious—something that reports powerfully and credibly on the criminal justice system as a whole. We want something that can easily follow the experience of users as they pass through the  system—users who include offenders, victims and witnesses—and that co-ordinates its programming and streamlines its methodology to reduce the additional work that inspection involves for front-line service providers.
We have not discussed that part of the requirement very much, but I think that we all agree that inspection should try to be an aid to improvement rather than a burden on services. It should be a burden on services when they fail to perform, and it should be unashamed about that, but it should also try to operate in a way that helps services, taking a strategic view of where it can make most difference, and thus provide best value for money. It needs to maximise opportunities for efficiency and for pooling funds, skills, knowledge and support services.
If those are our objectives, I do not think that anyone who was given a remit to design a new inspection regime would actually propose five separate inspectorates and a co-ordinating secretariat. Why persevere with the awkwardness of a fractured regime when a unified one could preserve all its strengths and improve its most obvious weaknesses?
The hon. Lady remains to be convinced as to whether we can preserve all the present strengths. She has quoted, in aid, the chief inspector of prisons, but she will notice that the chief inspector retains—in a very inspectorial way—a note more of scepticism than criticism about whether what we have sought to do will in practice retain the excellence of inspection for which she is responsible, without—in her words—diluting it. She refers to the importance of the special duty for which we have provided, and she asks whether we can bottle it, and what will be the risk associated with change. I think that they are two of the most important things.
We have recognised that there is a risk at the moment of change—the risk of taking the eye off the ball—on custodial inspection, which is an area in which services can change quickly without any public awareness. That is particularly the case when there is a large prison population, and it is precisely why we have both kept the special duty, and have allowed ourselves to commence different parts of the new inspectorate responsibilities at different times. In that way, we can ensure that the ability and expertise that exists in the prisons inspectorate can be retained and can operate side by side with the new inspectorate, as it grows.
We think that that will diminish the risk—though it will not eliminate it 100 per cent. Nevertheless, the reform could make things much better. Though I cannot promise it to the hon. Lady—one never can when one is making a change—I genuinely think that by embedding those qualities in the legislation we have very substantially reduced the risk, and at the same time created the opportunity to retain spikiness.
I do not think that legislation can guarantee that we will always have chief inspectors who are sufficiently spiky and able to do the best kind of job, but creating a big strategic inspectorate, which has a duty not only to inspect the system end to end but to set its own inspection criteria and retain expertise, with a special  duty to inspect the conditions of those in custody and given substantial additional powers, is very likely to achieve the desired end. Legislation on its own cannot do that; it will depend on the personnel whom we appoint and the way in which we manage the new system.
It is very probable that we can not only continue the excellence of the prisons inspectorate. My ambition is much more than that: to ensure that we create a quality of independence and spikiness in the inspectorates of all relevant services, which in some cases have not been as powerful for the public and the user as we all feel they have been in the prison service. The prize is an inspectorate system that is at least as good as Her Majesty’s inspectorate of prisons and has all of its good qualities in all areas of criminal justice, community safety and custody. That is what we are seeking, and the way in which we have constructed part 4 of the Bill should reassure hon. Members that we have a real chance of producing something much better than what has gone before.

Nick Herbert: The rationale for the creation of the combined inspectorate puzzles me. As I understood it, it was originally to save money. Back in 2003 the Prime Minister’s Office of Public Service Reform produced a report entitled “Inspecting for Improvement.” It noted that the increase in the cost of public sector inspection had more than doubled from £250 million in 1997 to more than £550 million in 2002-03. Further impetus towards the rationalisation of the way in which inspections were conducted was provided by the Gershon efficiency review.
We should note that the combined inspectorate, the reduction of the number of inspection bodies relating to business from 35 to nine and the reduction in public sector inspectorates from 11 to four were announced by the Chancellor in the Budget last year. The implication was that there would be savings, which was why it formed a part of the Budget discussions, or at least a reduction in unnecessary regulation. That appeared to be the rationale.
However on Second Reading the Minister for Policing, Security and Community Safety confirmed that the establishment of the inspectorate
“is not about saving money. We anticipate spending the same amount of money, although we may make some marginal efficiency savings.”—[Official Report, 6 March 2006; Vol. 443, c. 690.]
We therefore have the curious suggestion that simply combining the inspectorates will somehow result in a more efficient inspection regime. How will it do so? It is not going to involve any savings, for a start. The regulatory impact assessment states at paragraph 3.2:
“A new independent inspection regime is needed to provide the independent scrutiny required by Ministers”.
Well, we have agreed about the necessity for independent scrutiny. It adds that it is needed
“to retain credibility with the public and inspected bodies themselves”—
we agree about that too—
“as well as an increased focus on outcomes for the service users.”
We agree with those objectives, but it is not clear why a combined inspectorate should meet the objectives better than the existing inspectorates. It is, however, clear that there is a potential loss, in relation to the independence of the prisons inspectorate.
The balance sheet shows on the one hand an uncertain reorganisation, which will not save any money, and, on the other, great concern, expressed by the hon. Member for Hornsey and Wood Green (Lynne Featherstone) and others, including others outside the House, about the potential detrimental impact on the prisons inspectorate, which we have already debated. That is not a very convincing balance sheet. We are relying on a lot of assertion that somehow combining the bodies will automatically improve the inspection regime. I do not see evidence that that will happen, so we are taking it on trust that the regimes will be improved.
The regulatory impact assessment itself conceded that the improvement could, to varying degrees, be made by joint working—further, deeper co-operation between the existing five inspectorates. However, it argues that
“more radical reform is needed to achieve the maximum benefit.”
Radical reform simply consists of merging the inspectorate bodies. That is the extent to which it is radical.
I remain unpersuaded of the merits of the measure and concerned about the implications for the prisons inspectorate. I do not think that there is much more that we can say on the matter now, because we do not have a great deal of information about how the new inspectorate will operate. Much, as the Minister suggests, will rely on the quality of the appointees. Although the regulatory impact assessment suggested that a chief inspector would be appointed ahead of the enactment of the Bill, I do not think that it has happened yet. It is incredibly important that the individual in question should be able to epitomise the independence and leadership that any of the individual inspectorates, and certainly the combined inspectorate, need.

Lynne Featherstone: I appreciate the Minister’s response which showed a passionate conviction that the proposals will bring about a better system. The difference is that Liberal Democrat Members are not convinced that the provisions embody any guarantee. Supposing it all goes horribly wrong? How responsive could we be after the fact? As the hon. Member for Arundel and South Downs has said, we are asked to take a leap of faith, and at this point I am sure that I cannot do that without being negligent in my duty to those who rely on the quality of prisons inspection.

Derek Conway: The Minister does not have to answer, but I am happy to call her if she wishes.

Fiona Mactaggart: I was asked some specific questions by the hon. Member for Arundel and South Downs about what would improve. I shall give him three instances. It would be much easier to track the experience of service users. It is important to focus on that: providing a clear emphasis on the end user’s perspective. A service user does not know whether the  problems that they experience in a system are created by one service or another. At the moment, the inspectorates inspect only one silo unless they have an elaborate joint thematic inspection. The measure will help to produce outcome-focused findings and better, more user-friendly reports.
We will be able to promote improvement across agency boundaries—that is a real challenge for the criminal justice system—by exploring themes and making recommendations that span agencies, encouraging innovation, diversity and the spread of good practice, and discouraging silo working.
This is not a cost-saving exercise, but there will be effectiveness and efficiency gains from pooling funds, skills, knowledge and support services and from the ability to assimilate and continually learn from a wide range of experience. We have consulted on the measure, although one would not have thought so from the debates here, and a number of bodies—local criminal justice boards are foremost among them—are confident that it will produce a better system than the present one.
As I said to the hon. Member for Hornsey and Wood Green, we have put in place a number of mechanisms to protect us from the risks of everything going horribly wrong. An example is the timing of commencement of different aspects of the measure. That will protect us if there is a risk that we have not predicted.

Nick Herbert: I want to respond on one point. Paragraph 3.3 of the regulatory impact assessment states:
“Over time, it is likely that inspected bodies ... would lose confidence in inspectorates whose statutory remit was single agency inspection.”
It is alleged that a police force, for example, would lose confidence in the inspectorate of constabulary because that inspectorate had the single remit of inspecting constabulary. Why on earth should a police force lose confidence in an inspection body that is dedicated to and knowledgeable about the performance of the police service? On the contrary, a police force may well lose confidence in an inspection regime that is undertaken by a combined inspectorate that the force does not consider has expertise in the matters affecting that force. I return to my previous point. Many assertions are made about the benefits of a joint inspection regime, but I am not sure that there is much underlying that to give us confidence that the joint regime will necessarily deliver the higher standards of inspection that we seek.

Question put and agreed to.

Clause 21 ordered to stand part of the Bill.

Clause 22 ordered to stand part of the Bill.

Clause 23 - Duties of Chief Inspector with regard to prisons etc

Fiona Mactaggart: I beg to move amendment No. 86, in clause 23, page 25, line 15, leave out ‘holding centre’ and insert ‘holding facility’.
This technical amendment corrects a mismatch in wording between subsections (4) and (10) of clause 23.

Amendment agreed to.

Clause 23, as amended, ordered to stand part of the Bill.

Clause 24 - Power to confer additional functions on Chief Inspector

Fiona Mactaggart: I beg to move amendment No. 87, in clause 24, page 25, line 22, leave out ‘additional functions’ and insert
‘functions, other than inspection functions,’.
This technical amendment puts beyond doubt the purpose for which clause 24 is to be used—that is, to confer non-inspection functions relating to the existing inspection remit on the chief inspector if that is desired, not to add areas of inspection to the remit. A hypothetical example, in case hon. Members require it, of such a non-inspection function would be a role in making senior appointments to an inspected organisation.

Amendment agreed to.

Clause 24, as amended, ordered to stand part of the Bill.

Clauses 25 to 28 ordered to stand part of the Bill.

Schedule 8 - Her Majesty’s Chief Inspector for Justice, Community Safety and Custody

Fiona Mactaggart: I beg to move amendment No. 88, in schedule 8, page 87, line 32, at end insert—
‘()Sub-paragraph (4) does not apply in relation to employment as a member of staff of the Chief Inspector of a person falling within section 11(1)(bza) of the Police Pensions Act 1976 (c. 35) (members of staff of the Chief Inspector who are eligible for police pensions).’.
This is a technical amendment to clarify the pension status of members of the new inspectorate with police backgrounds and to regularise the pension status of members of the inspectorate of constabulary from non-police backgrounds.

Amendment agreed to.

Schedule 8, as amended, agreed to.

Clauses 29 and 30 ordered to stand part of the Bill.

Schedule 9 - Transfer of staff and property etc to the Chief Inspector

Fiona Mactaggart: I beg to move amendment No. 89, in schedule 9, page 93, line 24, leave out paragraph 5 and insert—
‘5At the time appointed for the purpose by a property transfer scheme—
(a)property, rights and liabilities for whose transfer the scheme provides,
(b)rights for whose creation the scheme provides, and
(c)liabilities for whose imposition the scheme provides,
are, by virtue of this paragraph, transferred or (as the case may be) created or imposed in accordance with the scheme.’.
This is another technical amendment, in order to give you another break, Mr. Conway. It brings paragraph 5 to schedule 9, which provides for a scheme for the transfer of property from the existing inspectorates to the chief inspector, into line with the approach adopted in an equivalent provision, paragraph (40)(1) to schedule 1, which relates to the transfer of property to the national policing improvement agency.

Amendment agreed to.

Schedule 9, as amended, agreed to.

Clause 31 ordered to stand part of the Bill.

Schedule 10 agreed to.

Clauses 32 to 34 ordered to stand part of the Bill.

Clause 35 - Making, supplying or obtaining articles for use in computer misuse offences

Amendment proposed: No. 148, in clause 35, page 30, line 17, leave out lines 17 to 20 and insert—
‘(a)intending it to be used to commit, or to assist in the commission of, an offence under section 1 or 3; or
(b)believing that it is likely to be so used.’.—[Fiona Mactaggart.]

Derek Conway: With this it will be convenient to discuss amendment No. 60, in clause 35, page 30, line 18, leave out ‘or’ and insert ‘and’.

Lynne Featherstone: I do not profess to be a computer expert or a computer hacking expert. I was contacted about the Bill by a constituent who is a computer security consultant, a visiting research fellow at the London School of Economics and an established expert on computer security. His remarks about the Bill have a serious bearing. He pointed out that the drafting is sloppy because it means that legitimate computer consultants could be breaking the law by using tools that are used for hacking, even if there are legitimate security reasons for using those same tools.
Obviously, many tools that are traditionally used by hackers are used by security consultants when checking a system to make it safe from hacking. For example, remote administration is used in many offices by IT staff to help with a malfunctioning computer. I  have rung up, as I am sure that we all have, for help when it is needed and they effectively hack into systems to help us out. That is little different from the traditional trojan, which allows a hacker to open programs on a different computer.
The current wording states that the law will be broken by anyone who makes, supplies or offers a program that is designed for use for an offence under section 1 or 3 of the Computer Misuse Act 1990, or intends to use those programs to commit any of the same offences. Our amendment would change the “or” to “and” to ensure that an offence is committed only when there is possession and intent to use the programs for the purposes of hacking, and so a security consultant using them legitimately to check that a system is secure would not be caught by the drafting.
Out of interest, I was moving around the internet, so to speak, and we stand condemned as a Committee on both sides by computer experts. They describe our handling of the subject as substandard. They particularly find fault with the Government’s approach, and Government amendment No. 148 has the distinction of making that substantially worse. Under the previous wording, a software developer had to know that their software was designed as a hacking tool or that it was intended for that purpose. Under the amendment, they will need only to intend it to be used or believe that it is likely to be used for that purpose. It is down to their belief. Those in software development are fully aware of the capabilities of software. We do not know what we are talking about.
Although Liberal Democrat were admonished—albeit only slightly—we received the endorsement that our suggestion to change “or” for “and” at the end of paragraph (a) would at least link what a developer believes their software may be used for with intent, but make the other bit about belief redundant. Although the Government have tabled their amendment as a late entry to try to get it right, it would seem that the computer industry is still criticising their amendment. I would prefer them to stick to our amendment, which has at least a slight endorsement from the computer experts, who have clearly been chattering long and hard. Their view is that the Government should have made more of an effort to get it right in the first place.
The Government have had a long time to think about the provision. They have received reports from the all-party group on the internet and from the internet crime forum, which is a Home Office consultative body. I understand that the original wording was not set out in consultation with anyone, expert or otherwise. I do not think that either side comes out particularly brilliantly, but I am trying to amend our lack of knowledge.

Derek Wyatt: May I reassure the hon. Lady? I had a ten-minute Bill on the Computer Misuse Act 1990, based on the all-party group on the internet’s inquiry, which was almost a Select Committee-style inquiry.
The provision has the approval of the whole computer industry, so I am fascinated that the hon. Lady has picked up on groups of people on the internet who do not like it. We have worked with the industry  for the past two and a half years to get it right. Moreover, we have worked with the Home Office and with the industry’s approval. We have been in and out of the Home Office and worked on the clauses and their interpretation. Last week, I was with some of the team who were trying to understand better how we could tweak and rephrase things. I am absolutely confident that we have got it right. If I did not think that, I would say so.
I applaud the way in which the Home Office has worked with MPs from all sides over the past few years on this tiny piece of legislation. It repeals the 1990 Act—imagine what a computer looked like in 1990—and will be the best piece of legislation, I believe, in the world. It beats what America or Australia are trying to do. The hon. Lady should have more confidence in the way in which hon. Members on both sides of the House have worked on the issue, including on the Government amendment.

James Brokenshire: My understanding is that the clause is intended to implement, in part, the Council of Europe’s cybercrime convention, which was established in 2001, as we heard. As the hon. Member for Sittingbourne and Sheppey (Derek Wyatt) stated, agreement on creating appropriate provisions to deal with such protections has been long coming.
Cybercrime afflicts us all in our daily work, with its cost to business and our economy. The ease of conducting one’s affairs is significantly impaired if one discovers that one’s computer has a virus and all the information on it is lost. That can damage a person’s personal affairs or, if they rely on a computer system to support their business, their ability to continue trading. I therefore welcome the thrust of clause 35 and the preceding clauses.
However, I do not necessarily agree with the linkage that the hon. Member for Hornsey and Wood Green mentioned in relation to her amendment No. 60. I take her amendment more to be an attempt to seek clarity for the industry, so that it knows that legitimate computer programmers, carrying out their ordinary business of merely supporting computers, but without any intent to help a computer hacker damage computer systems in this country or abroad, will not be penalised or fear that their actions may inadvertently result in their committing a criminal offence, unless there was some intention or even recklessness on their part.
It was interesting that Government amendment No. 148 was moved formally. I hope that the Minister clarifies the rationale behind the change. It was interesting to hear from the hon. Member for Sittingbourne and Sheppey that the proposal had been debated for some time, to give the industry that assurance, so it is perhaps a little surprising for a further change to come through at this late stage. The amendment clearly changes the emphasis behind the original drafting, which referred to a person
“knowing that it is designed or adapted for use in the course of or in connection with an offence under section 1 or 3”.
I can understand that the breadth of that provision required some tightening up, hence the Government’s amendment.
It is interesting that the new wording suggested in proposed new section 3A(1)(b) of the 1990 Act refers to a person
“believing that it is likely to be so used”—
in other words, so used in the performance of a crime under section 1 or 3 of that Act. I have some questions about that, although I respect the hon. Gentleman’s comments about the industry feeling comfortable that the provision provides the protections.

Michael Fabricant: It is not for me to speak for the Liberal Democrats, but I think that my hon. Friend should recognise that perhaps amendment No. 60 was based on the Bill’s original wording, which the Government have recognised is defective. I suspect—although I hope to catch your eye later on this, Mr. Conway—that Government amendment No. 148, so ably tabled by the Minister for Policing, Security and Community Safety, gets around that problem.

James Brokenshire: As always, I am grateful to my hon. Friend for his interventions, which help us to gain clarity. I agree and understand that the Government’s amendment was, perhaps, in response to the amendment that the hon. Member for Hornsey and Wood Green tabled to gain that clarity. I am sure that we will discover more when the Minister, the right hon. Member for Salford (Hazel Blears), gives some detail on the background to the case—and I would not dream, of course, of creating a new constituency for the right hon. Lady, as she so kindly created a new one for me.
The issue is gaining clarity on the new wording, and the new test set out in proposed paragraph (b) of
“believing that it is likely to be so used”.
There are two tests: the belief that an article is likely to be so used, and the intention that provision is intended to cover. What proof would be required to show that somebody thought that the article was likely to be used to commit an offence? What test would the prosecutors adopt? We need clarity on the extent and ambit of the provision to ensure that it catches those people who are reckless with the coding or other tools that they create to facilitate the perpetration of cybercrime—a serious and increasing crime that all of us must deal with.
The legislation must provide that protection, but it must not catch people who seek legitimately to provide in the ordinary course of their business services to the computer community. I hope that we can gain satisfaction on that point. It is important to have provisions on the statute book that seek to address this important issue.

Michael Fabricant: With regard to the point made by my hon. Friend, the county of Brokenshire is much more attractive than the county of Blears, but as you, Mr. Conway, were not present when that exchange took place, I had better move on.
I have the greatest regard for the all-party internet group, which I co-chaired with the hon. Member for Sittingbourne and Sheppey. If there have been three years of close liaison with the Home Office, however, I am concerned about why Government amendment No. 148 has been tabled only at the very last moment and after the Liberal Democrats—far be it from me to praise the Liberal Democrats for surfing the internet and looking at Computer Weekly or whatever magazine they read avidly—suggested it. I welcome the amendment and I can reveal to the Government Whip, the hon. Member for Enfield, North (Joan Ryan), that we shall not vote against it. However, we would have voted against proposed new section 3A(1) of the 1990 Act as it stands.
If I remember correctly from my law degree, which I completed a long time ago—I have never practised law either—there must be something important called mens rea: a guilty mind. There has to be a guilty mind or intent. Mere possession of something without the intent to commit a crime is not an offence in English common law. The situation has now been rectified. Under subsection (1) as it currently stands, a crime could have been committed without a guilty mind or intent, which is plainly wrong. That is why it is welcome to see Government amendment No. 148, which deals with
“intending it to be used to commit, or to assist in the commission of, an offence under section 1 or 3; or ... believing that it is likely to be so used”.
I hope that the Minister will explain. She has had three years of detailed negotiations, during which the hon. Member for Sittingbourne and Sheppey has been constantly coming in and out of the Home Office and banging on her door. I dare say that she has constantly been going to Norman Shaw, North to seek advice from the hon. Gentleman, who is so respected as chairman of the all-party internet group. Why is it that despite all that intimacy, if I may use that word, Government amendment No. 148 has suddenly emerged only now, at the very last minute? It is a mystery.
The hon. Member for Hornsey and Wood Green (Lynne Featherstone) was right to raise the issue that hacking tools are often used by computer technicians to rectify problems. I have been very stressed since Monday morning, when I switched on my desktop computer in Norman Shaw, North only to get an error message and find that I could not access my programmes, my e-mail or anything else. Fortunately, I have another computer. I phoned extension 2001 and eventually managed to speak to an intelligent life form, although it took a little while, as we know happens with extension 2001.

Derek Conway: Order. The hon. Gentleman’s travails are deeply fascinating to the Committee, but we have to get back to the amendment under consideration.

Michael Fabricant: As ever, I accept your guidance, Mr. Conway. Mr. Graham Lugton, who I suspect is in my room this very moment, might be using that software.

Stephen Pound: Wiping your history, I hope.

Michael Fabricant: The hon. Gentleman says from a sedentary position that my hard drive might be being wiped out. I fear that that may be happening, although I am told that it is not. My point is that Mr. Lugton might have in his briefcase—quite legitimately, in my opinion—software to enable him to hack into my hard drive to rectify the situation and get my computer working again. Under proposed new section 3A(1) of the 1990 Act, he would be committing an offence.
If the Bill is enacted as it stands, without Government amendment No. 148, I can imagine entire columns of people being removed from the parliamentary ICT service. Some would argue that our computers might work better, but that might go off the subject, so I will not test your patience, Mr. Conway. Nevertheless, it is a clear demonstration that one might need to possess that sort of software to do actions for good rather than for ill.

James Brokenshire: My hon. Friend has clearly set out the case for such protections. I hope that his hard drive has not been wiped during his absence in Committee. Does he also accept that it is important to have a further offence, not just involving an intention—for instance, the creation of a tool that could be used in cybercrime—but requiring an additional test? I appreciate that that might be difficult. Perhaps the Minister will clarify it. What if someone is reckless or says, “I didn’t intend it specifically to be used,” although a factual trail shows that that was the practical end effect?

Michael Fabricant: My hon. Friend makes an interesting point. Government amendment No. 148 refers to
“believing that it is likely to be so used.”
That creates a duty of care. The Minister will probably strengthen or endorse the amendment by stating that there is a duty of care to ensure that the software does not fall into the hands of those who might use it unlawfully.
The issue is important, and it is right that magazines have identified it. I assume that it was Computer Weekly—[Interruption.] It is in fact the Liberty Central website, with which I am not familiar. Nevertheless, we welcome the fact that Liberty Central has identified the issue. Given the constant liaisons, night and day, and at weekends, between the chairman of the all-party internet group and the Minister, and the fact that the Home Office is so dependant on the hon. Member for Sittingbourne and Sheppey for the very workings of government, I am shocked that it has taken so long for the Government amendment to arrive. Nevertheless, despite its belated appearance, I welcome it.

Lynne Featherstone: I am delighted that amendment No. 60, which was tabled very early, has had such a positive effect on the Government that they have tabled their amendment. We broadly welcome it; it is much better than we thought it might be. There was a danger that an offence would unintentionally be created in respect of a whole range of computer experts, so that they would be illegally hacking unintentionally. I am glad if our amendment flagged up that point to the Government.
I am no expert in these matters, and I have listened to advice from a wide range of sources. I will give to the hon. Member for Sittingbourne and Sheppey the document I printed off the internet on the independent inquiry into Britain’s democracy. I believe that its writer knows what they are talking about and is an expert in computers.
We broadly welcome the Government amendment, and I am glad that I was able to raise this issue by tabling our amendment.

Hazel Blears: Clearly, this is an important area, as the hon. Member for Hornchurch (James Brokenshire) outlined, and it also enables us to implement our various responsibilities under European legislation.
One of the things that the Serious Organised Crime Agency is set up to do is ensure that we can intervene further up the chain when offences are committed—to do much more prevention work and disruption work around areas such as cybercrime. Often, the products involved are available on the internet and can be easily downloaded by end users. This is the important question: how do we get to the manufacturers and suppliers of such internet tools, which can be put to such devastating effect in terms of denial of service? The hon. Member for Lichfield talked about the possibility of his hard drive being wiped out completely. I think all Committee members support the intention to ensure that we can disrupt such crime, which is an increasing problem.
We must also seek to draw the line in the right place, so that we prosecute and bring to justice the people who are working with the intention of disrupting computers, but do not prosecute people who are carrying out legitimate activity. My officials tell me that the clause has been contentious because it is felt that, as drafted, it could criminalise legitimate penetration testers, vulnerability testers and the wider IT security industry. I am sure that there is a perfectly proper definition of what is a legitimate penetration tester, but I will leave that to the cybercrime industry.
Like the hon. Member for Hornsey and Wood Green, I am not an expert in this area, but I am keen to ensure that our law enforcement agencies have the powers that they need to protect the community.

Michael Fabricant: I rise to ask a question, not on the subject of penetration, but about the Department of Homeland Security in the United States. It, too, recognises the potential for cyberterrorism, such as a sustained attack on a Government or on the utilities in a country in order to cause breakdown. The United  States has put huge resources into countering such an attack. Is the Home Office taking cyberterrorism seriously and are similar resources being devoted to establishing a similar protection not only for Government computer systems and police computer systems, but for our national utilities?

Hazel Blears: I am sure that the hon. Gentleman is aware of the counter-terrorism strategy, CONTEST, which has four strands—to prevent, pursue, prepare and protect. One of the most important areas is protecting the country’s essential national infrastructure. That relates not only to computer areas, although they are important, but to the various installations that provide the very fabric of life in our country. We are therefore constantly aware of the need to prepare as best we can.
The hon. Gentleman spoke about the influence of my hon. Friend the Member for Sittingbourne and Sheppey in this area. First, I am grateful to my hon. Friend for the work that he has done as chairman of the all-party internet group; he has liaised not only with Members of Parliament, but with industry, in order to bring us some expertise. It is right that Departments should be open to discussions and seek to draw in whatever information they can, and I am grateful to him for his role in that.
I can tell the hon. Member for Lichfield that we constantly have discussions with industry. Computers, the internet and the use of information are part of a fast-moving world. It is not a matter of coming late to the party, but an attempt to refine and get the balance right. That is the reason for the amendment.

Derek Wyatt: I reassure my right hon. Friend and the hon. Member for Lichfield that a significant private event happened in Washington in February, in which the Government were represented by the secret services and Departments. It considered the very issue that the hon. Gentleman raised. I reassure him that our contribution was substantial; in fact, it was much better than that of the homeland security people in America.

Hazel Blears: That is very reassuring.
I agree with the hon. Member for Hornsey and Wood Green that the new offence to be inserted into the Computer Misuse Act 1990 under clause 35 goes rather wider than originally intended. As drafted, the offence could inadvertently have caught people testing the resilience of their own systems. We explored the approach suggested by the hon. Lady, but it set too stringent a test. If the two limbs of the offence needed to be fulfilled in order for an offence to be committed, it could be difficult to prove the commission of the offence.
The formulation that we have come up with in amendment No. 148 aims to achieve the same outcome as the hon. Lady suggested, but sets it out in a better way. First, we have the limb of clear intent. The hon. Member for Lichfield’s law degree stands him in good  stead: there needs to be mens rea. I am pleased to say that his memory has not been wiped. The second limb is that it should be believed
“likely to be so used”.
That is a recklessness test, but a subjective one. If the hon. Member for Hornchurch cast his mind back to our recent debates on the Terrorism Bill, he will realise that we have a similar formulation. The test is similar, but it takes us a little further, so that people who believed that the article was likely to be used in that way would be guilty of an offence. That has a deterrent effect
It is important that people who believe that an article is likely to be used to disrupt systems illegally should not be making it or supplying it. The word “likely” is pretty well known in our legal system, and is not completely open; it is a matter for the courts to decide. Before deciding whether a person is guilty of an offence, a court must take into consideration whether he knew that the tool would probably be used or was expected to be used to commit an offence—that is the kind of sense that the court will consider, but it clearly depends on the evidence. The offence is a criminal offence, so it has to be proved beyond reasonable doubt. Courts will consider the surrounding circumstances, but they are pretty familiar with the meaning of likelihood.
I believe that we have drawn the line in about the right place to send out the clear message to people who make and supply programs that can cause devastating damage not to do so, but not to criminalise legitimate software developers. I note that the hon. Member for Hornsey and Wood Green said on her website—we Ministers surf the net too—that despite her valiant efforts at our last sitting,
 “Hazel was stony ground as per usual”,
and refused to move. I hope that she Lady will agree that today, I have been amenable, that I have listened and been flexible, was open to persuasion and came forward with an amendment that will achieve the outcome that she wants. I hope that she will reflect that in the next entry on her website.

Amendment agreed to.

Clause 35, as amended, ordered to stand part of the Bill.

Clause 36 ordered to stand part of the Bill.

Clause 37 - Forfeiture of indecent photographs of children

Question proposed, That the clause stand part of the Bill.

Derek Conway: With this it will be convenient to take the following: Government new clause 11—Forfeiture of indecent photographs of children: Northern Ireland.
Government new schedule 2—Schedule to be inserted into the Protection of Children (Northern Ireland) Order 1978.
Government amendments Nos. 97 to 101, 105 and 106.

Hazel Blears: The clause, which introduces schedule 11, amends the Protection of Children Act 1978. It provides a more effective mechanism for the forfeiture of indecent photographs of children under the age of 18 and the devices that hold them following a lawful seizure. The law currently allows for the forfeiture of indecent images following seizure under a warrant under the 1978 Act. In those circumstances, all material must be brought before the court, irrespective of whether its owner actually consents to the forfeiture. The court has no power to order the forfeit of articles brought before it under other powers of seizure, only those brought under the Protection of Children Act, so articles seized under another power—for example during a fraud investigation—cannot be condemned by the courts under the current law and could be returned to the owners.
That is the loophole in the law that the clause is designed to fill. Technically, the loophole means that indecent photographs of children could be returned to offenders. We are not aware of that ever having occurred, but the clause will fill the gap. Under the current position, if the authorities have gone in with a warrant under the Protection of Children Act, they can get the images forfeited. If the warrant were made under another provision and there was no conviction, people could have their computer handed back to them while it still contained the indecent images of children under the age of 18. I am sure that no member of the Committee would want that to happen.
The clause would close the loophole by replacing the current power under the Protection of Children Act 1978 with a power that allows forfeiture to be triggered by the police rather than the court. The power would allow the forfeiture of the material and any other material that it is not possible to separate from it, irrespective of the power under which the material was originally seized. That is a sensible, straightforward provision. New clause 11 and new schedule 2 make equivalent provisions in respect of Northern Ireland because it has the same gap in its law. It is important that the position is the same throughout all different jurisdictions.
We are changing the provisions so that forfeiture can be carried out by the police rather than the courts. However, is a provision under which, when someone is served with a notice of the police’s intention to forfeit the computers or the hard drive, that person can appeal to the courts and their application can be heard. That is to safeguard the position of third parties who may have some of their own information on the computer on which the indecent images are stored. For example, there could be a situation in which one of the two partners in the same household had been using the computer for their legitimate accounts and the other person in the household had accessed some indecent pornographic images of children. It is right that the third party should have the power to see if the information can be separated before the goods are forfeited. The third party will be able to make an application to the court to do so.
We have tried to cover a range of eventualities to be fair to all the parties, but I hope that all members of the Committee agree that a loophole that could result in people having indecent images returned to them is not something that we would want to allow. The clause will be a small, but important, addition to our law. It means that, in many cases, horrific images can be forfeited and not returned to the persons who originally downloaded them. I commend the new clauses to the Committee.

James Brokenshire: I rise in the spirit of cross-party consensus and perhaps in a slightly more cuddly and friendly way than the website of the hon. Member for Hornsey and Wood Green suggests, although I am sure that she will correct any impression that may have been given.
I support for the changes. It is a serious issue in terms of the people’s ability either to hold or to distribute indecent images. A bizarre loophole whereby a computer containing indecent images that had been seized for some other reason had to be handed back would be unacceptable and intolerable. We all want to crack down on that most pernicious of offences, which seeks to exploit minors and those least able to defend themselves. There was one such case in my constituency; a conviction was secured, but there was an impact on the community, which felt great disquiet at the fact that someone had sought to exploit children in that appalling way.
The Committee can show its repulsion and abhorrence of such offences by adopting the new clause, tightening the law and ensuring that a clear message is sent to the whole country. I wholeheartedly endorse the clause and the amendments and will welcome their inclusion in the Bill.

Lynne Featherstone: We totally support the clause and the amendments. I am delighted that the Minister is not always as stony as my blog may have indicated.

Question put and agreed to.

Clause 37 ordered to stand part of the Bill.

Schedule 11 agreed to.

Clause 38 ordered to stand part of the Bill.

Clause 39 - Amendments to the Extradition Act 2003 etc

Question proposed, That the clause stand part of the Bill.

Celia Barlow: We can be proud of our judicial system in this country. The enduring image of the statue of justice on top of the Old Bailey is seen as the very symbol of the fairness and impartiality of British justice. I wish to raise concerns about a possible circumvention of British law as a consequence of the Extradition Act 2003, which rightly enables us to work alongside the United States in the ongoing fight against terrorism.
I understand the need for terrorist suspects to be extradited to the United States when there is due reason to suspect that they are a threat to the security of the American homeland. However, I do not fully appreciate why the 2003 Act should extend beyond terrorist subjects. I am sure that most of us are familiar with the case of Ian Norris and the NatWest three—British citizens working for British companies who face trial not by British courts, but by United States courts, on allegations of fraud. It is absurd that our citizens could face extradition to the United States for crimes allegedly committed on British soil and largely against British company interests, particularly when no prosecution has been forthcoming in Britain. That is taking the principle of outsourcing one step too far.
I find it troubling that an extradition request can be made purely on the basis of a statement of fact about the alleged offence, as opposed to the serving of evidence, especially as Britain must produce evidence to secure an extradition from the US. I believe that an amendment to the Bill that would close that gap might be considered by the Minister at a later date, and I encourage her to do that.
Our business is now conducted in a global economy; UK business now has worldwide interdependency as never before. Understandably, organisations such as the Confederation of British Industry are worried when another country with laws different from ours is able to affect machinations in our own country. I do not advocate that those accused of committing corporate fraud should be allowed to walk free, but it is worth considering that our allies should have faith and confidence in our judicial process, which has evolved over hundreds of years. Perhaps the Minister will consider that we have an opportunity to work closer with our judicial counterparts in the United States on matters such as these.

Derek Conway: I allowed the hon. Lady to range wide of the clause, and some of the discussion may have taken place more appropriately under schedule 12. However, there is a degree of movement between the two, so I intend to stick to the amendments to schedule 12. If hon. Members want to contribute generally to any points that are not covered by the amendments, now would be the time for the general debate, and schedule 12 will just deal with the amendments specifically. I hope that have not confused everybody with that advice. Does the Minister wish to speak on clause stand part?

Hazel Blears: I am happy to have a more extensive debate on the amendments to schedule 12.

Question put and agreed to.

Clause 39 ordered to stand part of the Bill.

Schedule 12 - Extradition

Nick Herbert: I beg to move amendment No. 150, in schedule 12, page 110, line 11, at end insert—
‘“(j)forum”.’.

Derek Conway: With this it will be convenient to discuss the following amendments: No. 151, in schedule 12, page 110, line 13, leave out ‘19A’ and insert ‘19B’.
No. 152, in schedule 12, page 110, line 31, at end insert—
‘19BForum
If the conduct disclosed by the request was committed partly in the United Kingdom, the judge shall not order the extradition of the person unless it appears, in the light of all the circumstances, that it would be in the interests of justice that the person should be tried in the category 1 territory.’.
No. 155, in schedule 12, page 115, line 18, at end insert—
‘Bars to extradition
6ASection 79 (bars to extradition) is amended as follows—
(a)after subsection (1)(d) there is inserted—
“(e)forum”; and
(b)in subsection (2) leave out “83” and insert “83A”.’.
No. 156, in schedule 12, page 115, line 18, at end insert
‘Forum
6BAfter section 83 there is inserted—
“83AForum
If the conduct constituting the offence was committed partly in the United Kingdom, the judge shall not order the extradition of the person unless it appears, in the light of all the circumstances, that it would be in the interest of justice that the person should be tried in the category 2 territory”.’.

Nick Herbert: I am grateful for the opportunity to speak to the issue that the hon. Member for Hove (Ms Barlow) has raised—the imbalance in our extradition arrangements with the United States—which a number of my hon. Friends also raised on Second Reading.
On 31 March 2003, the UK signed a new extradition treaty with the United States in order, according to the preamble,
“to provide for more effective cooperation between the two States in the suppression of crime”.
The impact of that new treaty has already been profound. Since it was signed, the United States has sought the extradition of 44 alleged offenders, and 12 have already been sent to the US. The extradition of several others has been approved, but is awaiting appeal. For obvious reasons, I shall not comment on specific cases that may be sub judice. The important point is that, by contrast, Britain extradited only five suspects from the United States in the same period under the previous 30-year-old extradition treaty, including just one suspect in 2005.
The imbalance takes a number of forms. First, the treaty has not been ratified by the United States Senate. The Under-Secretary of State for the Home Department, the hon. Member for Leigh (Andy Burnham), giving evidence to the Home Affairs Committee, said:
“There is now a process underway in the States with regard to the consideration of the Treaty, so I would not say in any way it is unilateral and what I would say is that the end result will be modern arrangements between the two countries that will be reciprocal and in both of our interests.”
That was optimistic, because the treaty has been vigorously opposed by Irish-American groups in the United States. Professor Francis Boyle of the university of Illinois went so far as to tell the Irish Echo recently:
“We are going to hold the Democrats’ feet to the fire and warn Republicans that they will be toast if this treaty goes through”.
At the moment, the United States Senate shows no sign of wishing to ratify the treaty.

Robert Flello: Will the hon. Gentleman confirm my understanding that the Senate needs to vote by at least two thirds to one third to bring in the treaty?

Nick Herbert: I do not know whether that is the case. The hon. Gentleman may be correct, but the point is that there is no sign of the vote on the treaty even being held. The treaty has nevertheless been applied unilaterally by our own Government. As a consequence, since December 2003, extradition requests made by the United States have not had to be accompanied by prima facie evidence that there is a case to be tried. Instead, the United States authorities merely have to supply the facts of the charge along with appropriate identification information. By contrast, the United Kingdom has to provide evidence of probable cause when making extradition requests of the USA. There lies the fundamental imbalance.

Michael Fabricant: I should be grateful if my hon. Friend clarified one point. Much as I support the United States, I appreciate that he feels that the imbalance is wrong, but does he think that we were right to enter into a treaty under which, if the Senate ratified it, either party could simply ask for extradition without giving any reason for it?

Nick Herbert: I shall come to that very point. It is wrong that there is an imbalance in the evidential requirement and that the United States authorities should be able to extradite someone having offering insufficient evidence. I will give examples of that shortly.
We all understand that the reason for the evidential imbalance is that the requirement of probable cause is enshrined in the United States constitution. We could have maintained the same requirement ourselves, but we voluntarily gave it up. One practical consequence was reported in The Times on March 7:
“A Home Office spokeswoman confirmed that it was encountering obstacles in extraditing suspects, particularly sex offenders, from the US. This is because the existing treaty, dating to 1972 and listing a schedule of extraditable offences, ‘was drawn up before the internet was invented’. She said: ‘There are people we want who are successfully evading justice.’”
So the evidential requirement placed on us prevents the extradition of people for sex offences from the United States.
A second concern about imbalance is that under the treaty offences do not have to be committed, or even substantially committed, in the requesting state for  them to be extraditable. A third concern is that the provisions of the treaty are being used to require extradition of people with only a minimal connection with the United States.
It is quite clear that the new treaty makes extradition possible where it would not have been possible before. In a statement made before the Senate Committee on Foreign Relations, the United States Department of Justice said:
“This designation has made the preparation of extradition requests far easier and, in some cases, allowed us to proceed with cases that we might earlier have declined to pursue.”
Lotfi Raissi, an Algerian pilot arrested on holding charges in a US extradition request shortly after 11 September 2001, was released five months later when no evidence to support the request was forthcoming. That calls into question the validity of the new arrangements, which remove the safeguard of the prima facie evidence requirement in relation to the United States. Members of the Home Affairs Committee—I was one—questioned a senior district judge, Tim Workman, who leads on extradition matters in this country, about the Raissi trial, over which he presided. He was asked whether the current treaty would have resulted in the same treatment of Mr. Raissi. Mr. Workman said:
“There were two charges, one of which I could have refused because that was purely on the basis of legal argument. The second charge, which related to an alleged deception in failing to notify a knee injury to the doctor, I think you are right, that that would have been difficult to have done anything other than to extradite.”

Mark Pritchard: Does my hon. Friend agree that there is concern not only about the principle of the application of the law, but about the detail and the process that he is outlining? Rather than help the process, the Government’s proposals will increase people’s concern.

Nick Herbert: There is no doubt that the operation of the treaty, which the amendments would redress and modify, has given rise to public concern. Such concern was not expressed about the previous extradition arrangements.

Robert Flello: Am I correct in understanding that the hon. Gentleman is less concerned about the ease of extradition as he is about the quality of justice on arrival in the United States?

Nick Herbert: Some argue that the quality of justice in the United States means that we should be concerned about the imbalance in the arrangements, but that is not the line that I shall pursue. I shall focus on the fact that there is an imbalance in the arrangements, but I shall come to the issues that the hon. Gentleman raises

Michael Fabricant: I suspect that I know to what the hon. Member for Stoke-on-Trent, South (Mr. Flello) is alluding. One might argue that there is no imbalance in the United States with regard to the justice that is delivered, and that that is why Camp X-Ray at Guantanamo Bay—a sovereign base, which is not part of the United States, but which is administered by it—must be used for its current purpose.

Nick Herbert: I am grateful to my hon. Friend, but I shall not be drawn into discussion of Guantanamo Bay. Anomalous—to use the Prime Minister’s word—though the existence of that institution is, I shall concentrate on the specific imbalances that the new extradition arrangements create.
I was referring to the case of Mr. Raissi. The attempt to extradite him under the previous arrangements was not successful, but he could be the subject of a new extradition request for which no evidence would be required under the new treaty.

Mark Pritchard: Does my hon. Friend share my concern that the United States Government might use any new treaty, given the lack of equity with the provisions here in the United Kingdom, to extradite people for all manner of things, including alleged tax evasion? The argument is that beefed-up legislation is needed to combat terrorism, but it will be a catch-all measure, rather than used specifically to combat terrorism.

Nick Herbert: My hon. Friend is correct that it is a catch-all in the sense that the extradition arrangements can apply to offences with a penalty of £1,000 or more, and that includes some relatively low-level offences. I shall come to the question whether the operation of the treaty and its introduction were largely about dealing with terrorist matters, but I agree with my hon. Friend.
The fourth concern about the application of the new treaty is that it was, in effect, introduced behind Parliament’s back. It was announced in this country on 31 March 2003—the day that it was signed. Issuing a press notice that day, the former Home Secretary said:
“This new treaty will mean much closer co-operation and cut out much of the paperwork which has led to unnecessary delays in the current system and allowed criminals to exploit loopholes and deliberately thwart justice. The existing treaty was outdated and in need of replacement.”
There we have the Home Office’s favourite catch-all offence: any new proposal will deal with unnecessary delays in the current system and prevent criminals from exploiting loopholes. We have heard that justification during our proceedings on the Bill. That argument was advanced before any of us could see what was in the treaty: the text was not released until 21 May, nearly two months later and the day before the Whitsun recess. The text said that the treaty was intended to modernise and simplify the UK’s extradition arrangements with the United States.
The Government contend that overall the provisions are, in the words of the Under-Secretary of State, the hon. Member for Leigh (Andy Burnham), “proportionate and fair”. I should like to deal specifically with some of the defences that the Under-Secretary has offered for the arrangements, and show why they are neither proportionate nor fair.
First, the Government claim that they were working on an overhaul of extradition law long before 9/11, and that the treaty was not first and foremost a terrorist treaty. That point goes to the concern raised by my hon. Friend the Member for The Wrekin (Mark  Pritchard). However, when Lord Falconer of Thoroton announced, during the passage of the Extradition Act 2003, the signing of the new treaty, he concluded:
“I am pleased that it has been possible to reach agreement on the new treaty and that the Government have the opportunity to affirm their commitment to the closest possible co-operation in the fight against terrorism and other serious crime.”——[Official Report, House of Lords, 31 March 2003; Vol. 646, c. WA93.]
He thus singled out terrorism, and at the time when he announced the treaty, before Parliament could examine it, he gave the clear impression that it was intended to deal with terrorism and other serious crime.
The treaty, of course, changed the basis on which extradition can take place, as I have described, and, as I mentioned, instead of the list of extraditable offences it introduced a sentence threshold of just 12 months, which means that any crime that carries a sentence of more than 12 months in Britain or the United States is now an extraditable offence, without the necessity of setting out a prima facie case. As a consequence, more than half the extradition applications made by the United States under the new treaty last year related to white-collar crime.
That is a concern, partly because making anti-competitive agreements has been an imprisonable offence in this country only since the Enterprise Act 2002, but some of the reported extradition requests have concerned directors accused by the United States of competition law offences prior to that date. That is because the treaty is in some respects retrospective.
The Under-Secretary’s second suggestion was that the new arrangements have redressed the balance in evidential arrangements. I find it extraordinary that the Government can claim that the balance has been redressed. The evidential requirements beforehand were broadly balanced, but now, as I mentioned, it is possible to extradite UK citizens on the basis of identification only, without showing probable cause.

Mark Pritchard: Does my hon. Friend share my concern that authorities in this country might use their time and resource to apprehend those against whom allegations of white-collar crime are made, when we know that tax evasion and fraud are on the increase in this country? Does he agree that it is perhaps better that we should start at home dealing with people who evade tax here, rather than trying to help the Americans? Perhaps we should help them later.

Nick Herbert: I do not think that we should send any signal that serious white-collar crime should not be dealt with. It should be dealt with, but the question is first whether it can be dealt with in our courts and secondly whether we can be confident that it is being properly dealt with in another country, or that it is proper for that country to seek the extradition of people on the basis of laws that may not have been in force when the alleged crime was committed in our country.
The use of identification only as the basis of extradition is dangerous. To realise that, we have only to remind ourselves of the case of Mr. Derek Bond, who was arrested in South Africa at the request of FBI officials on suspicion that he was a Mr. Derek Sykes who had defrauded people out of millions of dollars. It transpired that Mr. Bond was a retired charity worker who worked for the Rotary club in Clifton. It is worth reminding ourselves that under the operation of this treaty, had Mr. Bond been in the United Kingdom he would have been successfully extradited to the United States, because all that it would have had to do was to show the evidence that a crime had taken place and to identify Mr. Bond. It would have been the FBI’s word that Mr. Bond was indeed the suspect.
The third concern that the Under-Secretary sought to address was that the Government misled Parliament. He said that that was not the case. In fact, when Lord Falconer of Thoroton announced the signing of the new treaty he said:
“Before the treaty can come into force it needs to be ratified by the United States Senate.”—[Official Report, House of Lords, 31 March 2003; Vol. 646, c.WA93.]
We now know that that is not the case and that, contrary to the precise words that he used, the United Kingdom Government went ahead with implementation before the United States Senate ratified the treaty.
That came as a great surprise of many people in the United States. The United States Department of Justice said in the evidence that it gave to the United States Senate Committee on Foreign Relations:
“As events transpired, the government of the United Kingdom undertook to designate the United States for favored treatment under the new legislation and the lower standard of proof as of January 2004, even though the United States ratification process was not yet complete.”
The Government had taken it upon themselves to go ahead with a one-sided introduction of the treaty before the Senate had even begun the process of ratification. It is difficult to understand why they thought that was a wise thing to do.
When the Home Affairs Committee scrutinised the Extradition Bill in 2002 it asked the Home Office in what circumstances it envisaged exempting countries from the prima facie requirement that is provided for now in section 71(4) of the Extradition Act 2003. The Home Office replied that the provision was necessary in order to exempt those countries that were Council of Europe member states but not EU member states.
The report stated:
“The Home Office also told us that they believe there is a case for removing the prima facie evidential requirement from certain Commonwealth countries and bilateral treaty partners. We understand from the Home Office that there are no current plans to negotiate bilateral extradition treaties with any new countries.”
It was published on 28 November 2002. The new treaty with the United States was signed just four months later.
In two important respects Parliament was misled about what was happening. First, Lord Falconer said that the treaty would be ratified before it could come into force and secondly the Government gave no indication to the Home Affairs Committee that a new treaty was being negotiated with the United States.  One of the consequences is that there has not been proper parliamentary consideration of, or debate on, the order that exempted the United States from the prima facie requirement. That was debated in just one and a half hours and was passed. The treaty itself received no parliamentary scrutiny at all.
Fourthly, the Under-Secretary sought to suggest that protections in the European convention on human rights are enshrined in the Extradition Act 2003. However, during the debate on the Extradition Bill, Parliament was constantly told that the incorporation of the protections of the European convention on human rights would provide such safeguards. The then Under-Secretary at the Home Office, the hon. Member for Don Valley (Caroline Flint) described them as solid safeguards. Similarly, on Second Reading of that Bill, the then Minister for Policing, the right hon. Member for Southampton, Itchen (Mr. Denham), said that extradition could be barred if the fugitive’s rights under the European convention on human rights would be breached.
The problem is that, in spite of the Government’s contention on the matter, since then counsel for the Government has successfully contended in the High Court that in practice human rights protections will always be trumped by a valid extradition request—so it transpires that those assurances cannot be relied upon to provide safeguards in the legislation.

Mark Pritchard: Does my hon. Friend agree that we should perhaps hear from the European Court of Human Rights on the matter? We might bring a case before that court in the near future that results in a different judgement.

Nick Herbert: So far, our courts are denying that the matter can properly be considered under the convention on human rights; they say that it has not been breached. Whether there will be an appeal, as a consequence of which the decision that he suggests will be made, remains to be seen.
Similar defences of the current arrangements were offered by the then Under-Secretary when the order was approved, back in December 2003. She suggested that reciprocity had never been a feature of our extradition arrangements and that complete reciprocity was not possible. Perhaps complete reciprocity is not possible, but our citizens used to have the same protection as that which is afforded to United States citizens by their constitution. Now, our citizens enjoy lesser constitutional rights than US citizens. It is interesting that there are circumstances in which the written constitution of the United States is able to offer protections to its citizens that our constitution cannot offer to ours.
The Under-Secretary also suggested that France and Ireland had accepted the terms of the arrangements, and asked why it was necessary to single out the United States of America. That was to miss the point that in the extradition arrangements that have been negotiated with both France and Ireland, extradition may be refused according to the terms of the treaty if, under the law of the requested state, the offence is seen as having been committed on its  territory. Those provisions are absent from the UK-US extradition treaty. Article 3.2 of the Irish-US extradition treaty says
“Extradition may be refused ... when the competent authorities of the Requested State have decided to refrain from prosecuting the person whose surrender is sought for the offense for which extradition is requested”.
Similarly, article 3 of the French-US treaty provides that the requested party may refuse to extradite a person claimed for an offence that is regarded by its law as having been committed in whole or in part in its territory or in a place treated as its territory, so the contention that France, Ireland and other countries have accepted terms similar to those that have been accepted in the United States is wrong.
My amendments will help to deal with the imbalance that has been created as a consequence of the existing extradition arrangements. I would be grateful for the Committee’s forbearance for a moment while I identify which amendments I am speaking to, as I note that they have been grouped separately. I do not want to make the mistake of speaking to the wrong ones. Does anyone have a marshalled list that they can offer me?

Derek Conway: Order. I might be able to help the hon. Gentleman. We will debate his second group of amendments, which deals with cases in which persons have not been convicted, when we have disposed of this group. He is on amendment No. 150, on page 826 of the amendment paper.

Nick Herbert: I am grateful for your guidance, Mr. Conway.
This group of amendments would enable the courts to refuse extradition if the crime could be dealt with in the United Kingdom unless the requesting territory can demonstrate that it would be in the interests of justice for the trial to take place there rather than here. The amendments would effectively incorporate article 7 of the European convention on extradition into the treaty by adding to the list of bars to extradition in section 79 of the Extradition Act a new category of “forum”, which is not currently a bar to extradition.
There are three reasons why the amendments would be a welcome change. First, the proposed changes are consistent with UK policy and those of our extradition partners. It is stated UK policy that where possible a person should be tried in the jurisdiction where the offence took place. Although territoriality is the main criterion, it is acknowledged that modern crime that takes place across several borders presents developing challenges, and that other factors, such as the location of witnesses and evidence, are also important.
A recent High Court case established that no single entity, individual or organisation in the UK has responsibility to make a determination on the appropriate forum where more than one justification could prosecute. The Extradition Act does not permit any decision on forum; the amendment would rectify that anomaly, allowing the UK courts to be the arbiters, and permitting extradition where the requesting state can demonstrate why it makes sense for the trial to take place abroad rather than in the UK.  A similar amendment to part 1 of the Act is proposed to bring the UK into line with its European partners in the Euro-warrant system.
Secondly, the amendments are consistent with the principles on which extradition is based. It has always had the ultimate objective of preventing criminals from evading justice by crossing national borders. As crime has become more international, so have the criminal legal systems adopted by different countries. Many countries can now prosecute crimes that have no obvious nexus with their borders. It seems logical to allow the refusal of extradition where it is obvious that the crime would best be dealt with in the UK. In no sense, could that be seen as allowing fugitives to evade justice. On the contrary, it would merely give expression in domestic law to the practical realities of how jurisdictional conflicts are already being solved between different countries on an ad hoc basis.
Thirdly, the amendments would provide a solid safeguard for UK citizens. As many territories can now request extradition without evidence, and many have legal systems that allow them to claim jurisdiction over acts that have no direct nexus with their borders, it seems sensible to protect UK citizens from being transported abroad—potentially thousands of miles from their homes and families—often to be put in prison pending trial for offences that might more properly be dealt with in the UK.
The forum amendments are permissible within the European framework decision. Article 4.7 of the framework says:
“The executing judicial authority may refuse to execute the European arrest warrant ... where the European arrest warrant relates to offences which ... are regarded by the law of the executing Member State as having been committed in whole or in part in the territory of the executing Member State or in a place treated as such”.
At no stage has it been argued that extradition should be easier under part 2 of the Act than under part 1. If the part 1 formulation is specifically permitted by the framework decision, therefore, which is the justification for part 1, it should logically also apply to part 2. That is what the amendments are intended to achieve.
Great concern has been expressed outside the House about the imbalance in the treaty, particularly by business organisations. The CBI has supported amendments that would provide for trial in the United Kingdom, and the director-general of the Institute of Directors has pointed out:
“Business people are especially vulnerable because of the large number of jurisdictions in which they may operate. Where they have a US subsidiary, allegations could be made against a British-based executive on the basis of very tenuous connections with the US and on hearsay evidence.
This is not comparable with an individual who commits a crime and then flees the jurisdiction. A director may never even have visited the US subsidiary to find himself facing extradition.”

Michael Fabricant: My hon. Friend goes into an interesting area. Before I became a Member of Parliament I set up radio stations in a number of countries around the world.

Derek Wyatt: Mickey Fabb!

Michael Fabricant: The hon. Gentleman is wrong. I was setting up radio stations at that time, I was not a radio presenter. That was many years earlier.
I was involved in radio stations in the far east, where one had to make provision, through an agent, for what were frankly bribes. That was the only way to make a contract. Such bribery is not to be condoned, and is illegal in the United States. Is it not the case that a person in a British company that quite legitimately does business in certain countries in the far east and gives commission to its agents, who then pass on some of that commission as a bribe—that is frankly what happens in international business, because if a British company did not do it you can bet you bottom dollar that French, German, American and Japanese companies would and we would lose out—could be extradited to the United States simply for being in breach of American law, even if the offence did not happen in America?

Nick Herbert: I am not sure whether that would be the case, so I will not be drawn into the murky area of bribery with which my hon. Friend shows familiarity.
The director-general of the IOD concluded:
“I believe that we need to re-open this treaty. We need to make sure that we have an arrangement that retains fundamental protections for all those within our jurisdiction and that it does not discriminate against business people. What we have now could make UK companies increasingly reluctant to do business in the US.”

Mark Pritchard: Does my hon. Friend agree that this may encourage malicious investigations brought about by competitors wanting to disrupt particular businesses, perhaps when they are trying to merge with another company or during an acquisition? There might be malicious attempts to get directors of companies extradited.

Nick Herbert: I am intrigued by my hon. Friend’s question. I do not know whether that would be the case. The point is that the evidential burden is very low. Extradition relies only on the facts of the case being brought before the court and on the identification evidence. The amendments’ purpose is to suggest that one way to deal with the imbalance is to permit such cases to be heard, when possible, in this country.
The CBI has expressed concerns about the operation of the Extradition Act, and has therefore supported my amendments. It points out that the amendments would enable the country requesting extradition to persuade a United Kingdom court that it would be in the interests of justice for the trial to take place in their country. That would introduce an important element of judicial scrutiny and a balance of the interests of justice, which are lacking at present.
On Second Reading, the Minister acknowledged concerns about the failure of the United States to endorse the treaty. She assured hon. Members that the Government were constantly pressing for the matter to be properly considered. No doubt the Minister will report on what progress she and the Government are making in doing so. She went on to say:
“We have probably got the best balance that we can get in the treaty”.
It is difficult to conclude that we have the best balance that we can get, for all the reasons that I have set out. A fundamental imbalance is enshrined in the treaty. My amendments will go some way to redress that imbalance.

James Brokenshire: I support the amendments. My hon. Friend is seeking greater clarity and a more even balance between the United States and the United Kingdom on extradition. I come to the issue slightly surprised that the anomaly arose in the first place.

Michael Fabricant: Why is my hon. Friend surprised? Time and time again, this Government have made deals with Sinn Fein and, more importantly, with the European Union, in which we do all the giving and they do all the taking. Why is he so surprised?

James Brokenshire: I thank my hon. Friend for that intervention. Perhaps my surprise comes from the fact that I have not been in the House long enough to see that in practice, and can judge only from my experience since my election last year.
Before I came into the House, I practised as a solicitor, although I do not practise now and have had no involvement in the legal field since then. It is not impossible to draft something for which approval is  conditional on the act of another party. If the Government had sought to implement that change for whatever reason—we can discuss that in more detail—it would have been possible to pass an order whose effective date was the date that the US treaty was ratified. Perhaps due to my lack of time in the House, I find it quite surprising that it was not possible to draft the Order in Council in such a manner that its effective date would have been conditional on the passing of the US side of the treaty. That would have ensured a dual approach and reciprocity between the UK and the US, so that no imbalance would have arisen.

Michael Fabricant: Would my hon. Friend care to speculate that it might have been because the President of the United States and the Executive surrounding him gave certain assurances that the President was unable to deliver because Congress was unwilling to endorse the treaty?

James Brokenshire: My hon. Friend makes a valid point about assurances, but there is a distinction between an assurance and the law. It seems that the issues that we are debating this afternoon highlight that fundamental distinction.

It being One o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned accordingly till this day at Four o’clock.